OLGA TELLIS & ORS.

v.

BOMBAY MUNICIPAL CORPORATION & ORS. ETC.

JULY, 10, 1985

[Y.V. CHANDRACHUD, C.J., S. MURTAZA FAZAL ALI, V.D. TULZAPURKAR, 0.

CHINNAPPA REDDY AND A. VARADARAJAN, JJ.]

Constitution of India, 1950

Article 32 - Fundamental Rights - Estoppel - Principle behind - No estoppel can be claimed against
enforcement of Fundamental Rights.

Article 21, 19(1) (e) & (g) Pavement and slum dwellers Forcible eviction and removal of their hutments
under Bombay Municipal Corporation Act - Whether deprives them of their means of livelihood and
consequently right to life - Right to life -Meaning of - Whether includes right to livelihood.

Article 32 & 21 - Writ Petition against procedurally ultra vires Government action - Whether
manintainable.

Bombay Municipal Corporation Act, 1888, s.314 - Power to remove encroachments "without notice", when
permissible C Section - Whether ultra vires the Constitution.

Administrative Law - Natural Justice - Audi alteram partem- Notice - Discretion to act with or without
notice must be exercised reasonably, fairly and justly - Natural justice –Exclusion How far permissible.

The petitioners in writ petitions Nos. 4610-12/81 live on pavements and in slums in the city of Bombay.
Some of the petitioners in the second batch of writ petitions Nos. 5068-79 of 1981, are residents of Kamraj
Nagar, a basti or habitation which is alleged to have come into existence in about 1960-61, near the Western
Express Highway, Bombay, while others are residing in structures constructed off the Tulsi Pipe Road,
Mahim, Bombay. The Peoples Union for Civil Liberties, Committee for the Protection of Democratic
Rights and two journalists have also joined in the writ petitions.

Some time in 1981, the respondents - State of Maharashtra and Bombay Municipal Corporation took a
decision that all pavement dwellers and the slum or bust! dwellers in the city of Bombay will be evicted
forcibly and deported to their respective. places of origin or removed to places outside the city of Bombay.
Pursuant to that decision, the pavement dwellings of some of the petitioners were in fact demolished by the
Bombay Municipal Corporation. Some of the petitioners challenged the aforesaid decision of the
respondents in the High Court. The petitioners conceded before the High Court that they could not claim
any fundamental right to put up huts on pavements or public roads, and also gave an undertaking to vacate
the huts on or before October, 15, 1981. On such undertaking being given, the respondents agreed that the
huts will not be demolished until October 15, 1981 and the writ petition was disposed of accordingly.

In writ petitons filed under Article 32, the petitioners challenged the decision of the respondents to
demolish the pavement dwellings and the slum hutments on the grounds (i) that evicting a pavement
dweller from his habitat amounts to depriving him of his right to livelihood, which is comprehended in the
right guaranteed by Article 21 of the Constitution that no person shall be deprived of his life except
according to procedure established by law, (ii) that the impunged action of the State Government and the
Bombay Municipal Corporation is violative of the provisions contained in Article 19(1)(3), 19(1)(g) and 21
of the Constitution, (iii) that the procedure prescribed by section 314 of the Bombay Municipal Corporation
Act, 1888 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only
does it not provide for the giving of a notice before the removal of an encroachment but, expressly enables
that the Municipal Commissioner may cause the encroachments to be removed Awithout notice, (iv) that it
is constitutionally impermissible to characterise the pavement dwellers as tresspassers, because their
occupation of pavements arises from economic compulsions; and (v) that the Court must determine the
content of the right to life, the function of property in a welfare state, the dimension and true meaning of
the constitutional mandate that property must subserve common good, the territory of India which is
guaranteed by Article 19(1) (a) and the right to carry on any occupation, trade or business which is
guaranteed by Article 19(1) (g), the competing claims of pavement dwellers on the one hand and of the
pedestrians on the other and, the larger question of ensuring equality before the law.

The respondents contested the writ petitions contending that (1) the petitioners must be stopped from
contending in the Supreme Court that the huts constructed by them on the pavements cannot be demolished
because of their right to livelihood, since they had conceded in the High Court that they did not claim any
fundamental right to put up huts on pavements or public roads and had given an undertaking to the High
Court that they will not obstruct the demolition of the huts after October 15, 1981.; (2) that no- person has
any legal right to encroach upon or to construct any structure on a foot-path, public street or on any place
over which the public has a right of way. The right conferred by Article 19(1) (e) of the Constitution to
reside and settle in any part of India cannot be read to confer a licence to encroach and trespass upon public
property; (3) that the provisions of sections 312, 313 and 314 of the Bombay Municipal Corporation. Act
do not violate the Constitution, but are conceived in public interest and great care is taken by the authorities
to ensure that no harrasment is caused to any " pavement dweller by enforcing the provisions; (4) that the
huts near the Western Express Highway, Vile Parle, Bombay, were $constructed on an accessory road
which is a part of the Highway .itself, and were never regularised by the Corporation and no registration
numbers were assigned to them; (5) that no deprivation of life, either directly or indirectly is involved in the
eviction of the slum and pavement-dweller from public places. The Municipal Corporation is under an
obligation under section 314 of the B.M.C. Act to remove obstruction on pavements, public streets and
other public places. The petitioners have not only violated the provisions of the Bombay Municipal
Corporation Act, but they have contravened sections 111 and 115 of the Bombay Police Act also.

Disposing of the writ petitions,

HELD: 1.1 The petitions are clearly maintainable under Article 32 of the Constitution.
Where the action taken against a citizen is procedurally ultra vires, the aggrieved party
can move the Supreme Court under Article 32. [79 C-D]

In the instant case, notwithstanding the fact that the petitioners had conceded in the
Bombay High Court that they have no fundamental right to construct hutments on
pavements and that
they will not object to their demolition after October 15, 1981, they are entitled to assert
that any such action on the part of public authorities will be in violation of their
fundamental
rights. How far the argument regarding the existence and scope of the right claimed by
the petitioners is well-founded is another matter. But, the argument has to be examined
despite the concession.

[78 C-D]
Basheshar Nath v. The Commissioner of Income Tax Delhi (1959) Supp. 1.S.C.R. 528,
referred to:.

2.1 The sweep of the right to life conferred by Article 21 is wide and far reaching. It does
not mean merely that life cannot be extinguished or taken away as, for example, by the
imposition and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An equally important facet
of that right is the right to livelihood because, no person can live without the means of
living, that is, the means of livelihood. If the right to livelihood is not treated as a part of
the constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of abrogation. Such
deprivation would not only denude the life of its effective content and meaningfulness but
it would make life impossible to live. And yet, such deprivation would not have to be in
accordance with the procedure established by law, if the right to livelihood is not
regarded as a part of the right to life. That, which alone makes it possible to live, leave
aside what makes like livable, must be deemed to be an Integral component of the right to
life. [79 F-H, 80 A-B]

2.2 The principles contained in Articles 39(a) and 41 must be regarded as equally
fundamental in the understanding and interpretation of the meaning and content of
fundamental rights. If there is an obligation upon the State to secure to the citizens an
adequate means of livelihood and the right to work, it would be sheer pendantry to
exclude the right to livelihood from the content of the right to life. The State may not, by
affirmative action, be compellable to provide adequate means of livelihood or work to the
citizens. But, any person who is deprived of his right to livelihood except according to
just and fair procedure established by law, can challenge the deprivation as offending the
right to life conferred by Article 21. [80 G-H, 81 A]

xxx
In the instant case, it is clear from the various expert studies that one of the main reasons
of the emergence and growth of squatter-settlements in big Metropolitan cities like
Bombay, is the availability of job opportunities which are lacking in the rural sector. The
undisputed fact that even after eviction, the squatters return to the cities affords proof of
that position. These facts constitute empirical evidence to justify the conclusion that
persons in the position of petitioners live in slums and on pavements because they have
small jobs to nurse in the city and there is nowhere else to live. Evidently, they choose a
pavement or a slum in the vicinity of their place of work, the time otherwise taken in
commuting and its cost being forbidding for their slender means. To lose the pavement or
the slum is to lose the job. The conclusion, therefore, in terms of the constitutional
phraseology is that the eviction of the petitioners will lead to deprivation of their
livelihood and consequently to the deprivation of life. [82 D, 83 B-D]

3.1 The Constitution does not put an absolute embargo on the deprivation of life or
personal liberty. It is far too well settled to admit of any argument that the procedure
prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just
and reasonable. Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore essential that the
procedure prescribed by law for depriving a person of his fundamental right, must
conform to the means of justice and fair-play. Procedure, which is unjust or unfair in the
circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law
which prescribes that procedure and consequently, the action taken under it. Any action
taken by a public authority which is invested with statutory powers has, therefore, to be
tested by the application of two standards: The action must be within the scope of the
authority conferred by law and secondly, it must be reasonable. If any action, within the
scope of the authority conferred by law, is found to be unreasonable, it must mean that
the procedure established by law under which that action is taken is itself unreasonable.
The substance of the law cannot be divorced from the procedure which it prescribes for,
how reasonable the law is, depends upon how fair is the procedure prescribed by it. [83
E, 85 F-H, 86 A]

In the instant case, the procedure prescribed by Section 314 of the Bombay Municipal
Corporation Act for removal of encroachments on the footpaths or pavements over which
the public has the right of passage or access, cannot be regarded as unreasonable, unfair
or unjust. There is no static measure of reasonableness which can be applied to all
situations alike Indeed, the question "is this procedure reasonable?" implies and
postulates the inquiry as to whether the procedure prescribed is reasonable in the
circumstances of the case.

xxx

The charge made by the State Government in its affidavit that slum and pavement
dwellers exhibit especial criminal tendencies is unfounded. According to Dr. P.K.Muttagi,
Head of the unit for urban studies of the Tata Institute of Social Sciences, Bombay, the
surveys carried out in 1972, 1977,1979 and 1981 show that many families which have
chosen the Bombay footpaths just for survival, have been living there for several years
and that 53 ' per cent of the pavement dwellers are self-employed as hawkers in
'.vegetables, flowers, ice-cream, toys, balloons, buttons, needles '.and so on. Over 38 per
cent are in the wage-employed category as casual labourers, construction workers,
domestic servants and j,Juggage carriers. Only 1.7 per cent of the total number is gener-
unemployed. Dr. Muttagi found among the pavement dwellers a graduate of Marathwada
University and Muslim Post of some standing. "These people have merged with the
landscape, become part of it, like the chameleon", though their contact with their more |
fortunate neighbours who live in adjoining high-rise buildings is 5 'casual. The most
important finding of Dr.Muttagi is that the \ pavement dwellers are a peaceful lot, "for,
they stand to lose 5 their shelter on the pavement if they disturb the affluent or indulge in
' fights with their fellow dwellers". The charge of the State Government, besides being
contrary to these scientific findings, is born of prejudice against the poor and the
destitute. Affluent people living in sky-scrapers also commit crimes varying from living
on the gains of prostitution and defrauding the public treasury to smuggling. But, they get
away. The pavement dwellers, when caught, defend themselves by asking, "who does not
commit crimes in this city ? "As observed by Anand Chakravarti," The separation
between existential realities and the rhetoric of socialism indulged in by the wielders of
power in the government cannot be more profound." 'Some aspects of inequality in rural
India i. A Sociological Perspective published in >Quality and Inequality, There is no short
term or marginal solution to the question of squatter colonies, nor are such colonies
unique to the cities of India. Every country, during its historical evolution, has faced the
problem of squatter settlements and most countries of the under-developed world face
this problem today. Even the highly developed affluent societies face the same problem,
though with their larger resources and smaller populations, their task is far less difficult.
The forcible eviction of squatters, even if they are resettled in other sites, totally disrupts
the econoinicMife of the household. It has been a common experience of the
-administrators and planners that when resettlement is forcibly done, squatters eventually
sell their new plots and -return to their original sites near their place of employment.
Therefore, 'what -is of crucial importance to the question of thinning out the squatters'
colonies in metropolitan cities is to create new opportunities for employment in the rural
sector and to-spread the existing job opportunities evenly in urban areas. Apart from the
further misery and degradation which it involves, eviction of slum and pavement dwellers
is an ineffective remedy for decongesting the cities. In a highly readable and moving
account of the problems which the poor have to face, Susan George says : ('How the
Other Half Dies - The Real Seasons for World Hunger1 (Polican books).

"So long as thorough going land reform, re-grouping and distribution of resources to the
poorest, bottom half of the population does not take place, Third World countries can go
on increasing their production until hell freezes and hunger will remain, for the
production will go to those who already have plenty to the developed world or to the
wealthy in the Third World itself. Poverty and hunger walk hand in hand".(Page 18).

We will close with a quotation from the same book which has a massage:

"Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have
definite and definable reasons for existing. Hunger may have been the human race's
constant companion, and 'the poor may always be with us', but in the twentieth century,
one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their
condition is not inevitable but is caused by identifiable forces within the province of
rational, human control", (p. 15)

To summarise, we hold that no person has the right to encroach, by erecting a structure or
otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public
purpose like, for example, a garden or a playground; that the provision contained in
section 314 of the Bombay Municipal Corporation Act is not unreasonable in the
circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory
road leading to the Western Express Highway. We have referred to the assurances given
by the State Government in its pleadings here which, we repeat, must be made good.
Stated briefly, pavement dwellers who were censused or who happened to be censused in
1976 should be given, though not as a condition precedent to their removal, alternate
pitches at Malavani or at such other convenient place as the Government considers
reasonable but not farther away in terms of distance; slum dwellers who were given
identity cards and whose dwellings were numbered in the 1976 census must be given
alternate sites for their reC settlement; slums which have been in existence for a long
time, say for twenty years or more, and which have been improved and developed will
not be removed unless the land on which they stand or the appurtenant land, is required
for a public purposes, in which case, alternate sites or accommodation will be provided to
them, the 'Low Income Scheme Shelter Programme" which is proposed to be undertaken
with the aid of the World Bank will be pursued earnestly; and, the Slum Upgradation
Programme (SUP;'under which basic amenities are to be given to slum dwellers will be
implemented without delay. In order to minimise the hardship involved in any eviction,
we direct that the slums, wherever situated, will not be removed until one month after the
end of the current monsoon season, that is, until October 31,1985 and, thereafter, only in
accordance with this judgment. If any slum is required to be removed before that date,
parties may apply to this Court. Pavement dwellers, whether censused or uncensused,
will not be removed until the same date viz. October 31, 1985.

The Writ Petitions will stand disposed of accordingly. There will be no order as to costs.

M.L.A. Petitions disposed of.